That may sound like a strange question to some. After all, Obama is a graduate of Harvard Law School, the one-time editor of its law review, and a former lecturer at the prestigious University of Chicago Law School. But I'm serious about that question, in light of comments he, his subordinates, and his allies have made recently.
Consider this from his press secretary the other day.
During an interview with MSNBC’s Chuck Todd, White House Press Secretary Josh Earnest explained that the Obama administration was getting impatient with Congress.
“[W]e’re not just going to sit around and wait interminably for Congress,” he explained.
But wait -- under our system the president is supposed to do exactly that when it comes to making law. All legislative power -- the power to actually make law -- is vested in the Congress. The president is to faithfully execute the laws made by Congress -- that is the very essence of Article II. That means that the laws on the book need to be fully and vigorously enforced -- not ignored as inconvenient or changed by executive fiat. If the president wants the law changed, he can seek to convince Congress to do so -- but he does, in fact, have to wait on Congress. Yet this president, allegedly a constitutional scholar, is not content to stay within the system.
And lest you think that this is just a subordinate speaking out of turn, Obama has made the same sort of argument.
Little more than four months before pivotal congressional elections, President Obama on Friday defended his economic policies and berated congressional Republicans for blocking many of his initiatives.
"They don't do anything," Obama told supporters gathered at a band shell near a Minneapolis lake. "Except block me, and call me names."
The president ran down a list of items on which he and congressional Republicans are at odds, including a new immigration bill, a proposed increase in the minimum wage, extending unemployment insurance, and fair pay for women.
Apparently Obama doesn't recognize that the Congress is a co-equal branch -- or that the Framers of the Constitution actually intended it to be a check on the executive. Congress job is not to pass laws that the president orders them to pass -- it is to consider what laws it deems appropriate and pass those, and to not pass those that it deems unwise or unworkable. Indeed, today the problem is not the GOP-controlled house refusing to pass legislation -- it is the Democrat majority leader of the US Senate refusing to allow the Senate to vote on many of those bills.
The Obama administration is “not bluffing” in its intent to take executive action on immigration policy if House Republicans don’t act soon, top Democratic leaders warned Thursday.
President Obama has delayed any potential changes to his deportation policy to allow House GOP leaders time to bring legislation to the floor this summer. But if the Republicans don’t act in July, the Democrats say, unilateral changes by Obama are inevitable.
“We’re at the end of the line,” Sen. Robert Menendez (D-N.J.) said Thursday during a press briefing in the Capitol. “We’re not bluffing by setting a legislative deadline for them to act.
“Their first job is to govern,” Menendez added, “and in the absence of governing, then you see executive actions.”
Sen. Dick Durbin (D-Ill.) piled on. Noting that a year has passed since the Senate passed a sweeping immigration reform bill with broad bipartisan support, he urged House Speaker John Boehner (R-Ohio) to bring a similar bill to the floor.
“I don’t know how much more time he thinks he needs, but I hope that Speaker Boehner will speak up today,” Durbin said. “And if he does not, the president will borrow the power that is needed to solve the problems of immigration.”
I want to look at two of those statements.
Senator Melendez states that “Their first job is to govern, and in the absence of governing, then you see executive actions." That, my friends, is antithetical to the proper constitutional order of things. Governing is not just acting -- it is also refusing to act in a manner contrary to the desires of the people and the good of the nation. Refusing to pass legislation that the president wants is also governing -- and is fully within the understanding of the Framers as to what the power of the legislative branch ought to be. On the other hand, executive action to thwart the will of Congress is contrary to that understanding.
And then there is Senator Durbin's assertion that "the president will borrow the power that is needed" to do what Congress refuses to do in response to the president's demands. I've been studying and teaching the Constitution for over three decades now, and I have never seen any provision of the Constitution that allows for the executive to "borrow" legislative power to do what Congress refuses to do. Indeed, that is contrary to the delegation to the executive on the power to ensure that the laws are faithfully executed, because no law exists if it is made outside of an exercise of the legislative power by Congress. Simply put, no president has the power to change a law that Congress refuses to change.
Lest you think I am projecting my own personal preferences on the Framers, I direct you to none other than the Father of the Constitution himself, James Madison. In The Federalist #47, Madison observed the following:
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.
He then goes on to explain the importance of separation of powers amongst and between the branches, citing Baron Montesquieu's Spirit of the Laws:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Given the unquestioned reliance of the Framers upon this work and its citation in what has been the primer on the meaning of the Constitution since the earliest days of the Republic, it cannot be argued that the Constitution itself allows for the president to act as an independent legislature using power borrowed from the branch to which such powers have been delegated.
Now Barack Obama is reputed to be an intelligent man with expertise in the United States Constitution. I therefore find it difficult to imagine that I have discovered anything in the Constitution and its ancillary documents that Obama himself would be unaware of. This leads me to the conclusion that while he may understand the Constitution, he certainly does not respect it or the oath of office he has twice taken at the beginning of his four year term of office. So what do we do in response to this violation of what he knows to be his duty as the president?
The obvious answer is impeachment -- but that is not a solution to the constitutional overreach of Barack Obama. Even setting aside the optics of making the first African-American president the first president to be impeached and removed, the reality is that removal will not happen. After all, as demonstrated by the quotes from Senators Melendez and Durbin, the very senators whose duty is to vote for Obama's removal in order to defend the constitutional prerogatives of Congress are acting as cheerleaders for his usurpation of congressional power. Even if Republicans gain control of the Senate in the elections in November, the likelihood of drawing a sufficient number of Democrat votes to reach the two-thirds majority needed for removal is negligible. In addition, Obama's successor would be Joe Biden, who would be likely to attempt to act in a fashion any better than Obama has.
We are therefore left with only one option as a people -- vote for Republicans in every Senate race in 2014 so that the Democrats will be denied the power to obstruct Republican legislation passed by the House. In addition, this will give Congress effective control of the nation's treasury, with the ability to block any funding for Obama's overreach. Obama will still be able to veto Republican bills and budgets -- but at that point it will be clear where the obstruction is coming from. More to the point, even if it remains impossible to heal all the wounds inflicted upon our nation's constitutional order, it will at least be possible to stop the bleeding.